[133]
Chapter 10:
- A recapitulation -- remarkable propositions of Gouverneur Morris in the convention of 1787, and their fate -- further testimony -- Hamilton, Madison, Washington, Marshall, etc. -- later theories -- Webster: his views at various periods -- speech at Capon Springs -- State rights not a sectional theory.
Looking back for a moment at the ground over which we have gone, I think it may be fairly asserted that the following propositions have been clearly and fully established: 1. That the states of which the American union was formed, from the moment when they emerged from their colonial or provincial condition, became severally sovereign, free, and independent states—not one state, or nation. 2. That the union formed under the Articles of Confederation was a compact between the states, in which these attributes of “sovereignty, freedom, and independence” were expressly asserted and guaranteed. 3. That, in forming the “more perfect union” of the Constitution, afterward adopted, the same contracting powers formed an amended compact, without any surrender of these attributes of sovereignty, freedom, and independence, either expressed or implied: on the contrary, that by the tenth amendment to the Constitution, limiting the power of the government to its express grants, they distinctly guarded against the presumption of a surrender of anything by implication. 4. That political sovereignty resides neither in individual citizens, nor in unorganized masses, nor in fractional subdivisions of a community, but in the people of an organized political body. 5. That no “republican form of government,” in the sense in which that expression is used in the Constitution, and was generally understood by the founders of the Union—whether it be the government of a state or of a confederation of states—is possessed of any sovereignty whatever, but merely exercises certain powers delegated by the sovereign authority of the people, and subject to recall and reassumption by the same authority that conferred them. 6. That the “people” who organized the first confederation, the people who dissolved it, the people who ordained and established the Constitution which succeeded it, the only people, in fine, known or referred to in the phraseology of that period—whether the term was used collectively or distributively—were the people of the respective states, [134] each acting separately and with absolute independence of the others. 7. That, in forming and adopting the Constitution, the states, or the people of the states—terms which, when used with reference to acts performed in a sovereign capacity, are precisely equivalent to each other —formed a new government, but no new people; that, consequently, no new sovereignty was created—for sovereignty in an American republic can belong only to a people, never to a government—and that the federal government is entitled to exercise only the powers delegated to it by the people of the respective states. 8. That the term “people,” in the preamble to the Constitution and in the tenth amendment, is used distributively; that the only “people of the United States” known to the Constitution are the people of each state in the Union; that no such political community or corporate unit as one people of the United States then existed, has ever been organized, or yet exists; that no political action by the people of the United States in the aggregate has ever taken place, or ever can take place, under the Constitution. The fictitious idea of one people of the United States, contradicted in the last paragraph, has been so impressed upon the popular mind by false teaching, by careless and vicious phraseology, and by the ever-present spectacle of a great government, with its army and navy, its customhouses and post offices, its multitude of officeholders, and the splendid prizes which it offers to political ambition, that the tearing away of these illusions and presentation of the original fabric, which they have overgrown and hidden from view, have no doubt been unwelcome, distasteful, and even repellent to some of my readers. The artificial splendor which makes the deception attractive is even employed as an argument to prove its reality. The glitter of the powers delegated to the agent serves to obscure the perception of the sovereign power of the principal by whom they are conferred, as, by the unpracticed eye, the showy costume and conspicuous functions of the drum major are mistaken for emblems of chieftaincy— while the misuse or ambiguous use of the term “union” and its congeners contributes to increase the confusion. So much the more need for insisting upon the elementary truths which have been obscured by these specious sophistries. The reader really desirous of ascertaining truth is, therefore, again cautioned against confounding two ideas so essentially distinct as that of government, which is derivative, dependent, and subordinate, with that of the people, as an organized political community, which is sovereign, without any other [135] than self-imposed limitations, and such as proceed from the general principles of the personal rights of man. It has been said in a foregoing chapter that the authors of the Constitution could scarcely have anticipated the idea of such a community as the people of the United States in one mass. Perhaps this expression needs some little qualification, for there is rarely a fallacy, however stupendous, that is wholly original. A careful examination of the records of the convention of 1787 exhibits one or perhaps two instances of such a suggestion—both by the same person—and the result in each case is strikingly significant. The original proposition made concerning the office of President of the United States contemplated his election by the Congress, or, as it was termed by the proposer, “the national Legislature.” On the 17th of July, this proposition being under consideration, Gouverneur Morris moved that the words national Legislature be stricken out, and “citizens of the United States” inserted. The proposition was supported by James Wilson—both of these gentlemen being delegates from Pennsylvania, and both among the most earnest advocates of centralism in the convention. Now, it is not at all certain that Morris had in view an election by the citizens of the United States “in the aggregate,” voting as one people. The language of his proposition is entirely consistent with the idea of an election by the citizens of each state, voting separately and independently, though it is ambiguous, and may admit of the other construction. But this is immaterial. The proposition was submitted to a vote, and received the approval of only one state—Pennsylvania, of which Morris and Wilson were both representatives. Nine states voted against it.1 Six days afterward (July 23d), in a discussion of the proposed ratification of the Constitution by conventions of the people of each state, Gouverneur Morris—as we learn from Madison—“moved that the reference of the plan [i. e., of the proposed Constitution] be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same.”2 Here the issue seems to have been more distinctly made between the two ideas of people of the states and one people in the aggregate. The fate of the latter is briefly recorded in the two words, “not seconded.” Morris was a man of distinguished ability, great personal influence, and undoubted patriotism, but out of all that assemblage—comprising, as it [136] did, such admitted friends of centralism as Hamilton, King, Wilson, Randolph, Pinckney, and others—there was not one to sustain him in the proposition to incorporate into the Constitution that theory which now predominates, the theory on which was waged the late bloody war, which was called a “war for the Union.” It failed for want of a second, and does not even appear in the official journal of the convention. The very fact that such a suggestion was made would be unknown to us but for the record kept by Madison. The extracts which have been given, in treating of special branches of the subject, from the writings and speeches of the framers of the Constitution and other statesmen of that period, afford ample proof of their entire and almost unanimous accord with the principles which have been established on the authority of the Constitution itself, the acts of ratification by the several states, and other attestations of the highest authority and validity. I am well aware that isolated expressions may be found in the reports of debates on the general and state conventions and other public bodies, indicating the existence of individual opinions seemingly inconsistent with these principles; that loose and confused ideas were sometimes expressed with regard to sovereignty, the relations between governments and people, and kindred subjects; that, while the plan of the Constitution was under discussion, and before it was definitely reduced to its present shape, there were earnest advocates in the convention of a more consolidated system, with a stronger central government. But these expressions of individual opinion only prove the existence of a small minority of dissentients from the principles generally entertained, and which finally prevailed in the formation of the Constitution. None of these ever avowed such extravagances of doctrine as are promulgated in this generation. No statesman of that day would have ventured to risk his reputation by construing an obligation to support the Constitution as an obligation to adhere to the federal government—a construction which would have insured the sweeping away of any plan of union embodying it, by a tempest of popular indignation from every quarter of the country. None of them suggested such an idea as that of the amalgamation of the people of the states into one consolidated mass —unless it was suggested by Gouverneur Morris in the proposition above referred to, in which he stood alone among the delegates of twelve sovereign states assembled in convention. As to the features of centralism, or nationalism, which they did advocate, all the ability of this little minority of really gifted men failed to secure the incorporation of any one of them into the Constitution, or to [137] obtain their recognition by any of the ratifying states. On the contrary, the very men who had been the leading advocates of such theories, on failing to secure their adoption, loyally accepted the result, and became the ablest and most efficient supporters of the principles which had prevailed. Thus Hamilton, who had favored the plan of a President and Senate both elected to hold office for life (or during good behavior), with a veto power in Congress on the action of the state legislature, became, through the Federalist, in conjunction with his associates, Madison and Jay, the most distinguished expounder and advocate of the Constitution, as then proposed and afterward ratified, with all its federal and state-rights features. In the ninth number of that remarkable series of political essays, he quotes, adopts, and applies to the then proposed Constitution, Montesquieu's description of a “confederate republic,” a term he (Hamilton) repeatedly employs. In the eighty-first number of the same series, replying to apprehensions expressed by some that a state might be brought before the federal courts to answer as defendant in suits instituted against her, he repels the idea in these plain and conclusive terms. The italics are my own:
It is inherent in the nature of sovereignty not to be amenable to the suit of any individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the Convention, it will remain with the States, and the danger intimated must be merely ideal. . . . The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the Federal courts, by mere implication, and in destruction of a preexisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarranted.3This extract is very significant, clearly showing that Hamilton assumed as undisputed propositions, in the first place, that the state was the “sovereign”; secondly, that this sovereignty could not be alienated, unless by express surrender; thirdly, that no such surrender had been made; fourthly, that the idea of applying coercion to a state, even to enforce the fulfillment of a duty, would be equivalent to waging war against a state—it was “altogether forced and unwarrantable.” In a subsequent number Hamilton, replying to the objection that the [138] Constitution contains no bill or declaration of rights, argues that it was entirely unnecessary, because in reality the people—that is, of course, the people, respectively, of the several states, who were the only people known to the Constitution or to the country—had surrendered nothing of their inherent sovereignty, but retained it unimpaired. He says: “Here, in strictness, the people surrender nothing; and, as they retain everything, they have no need of particular reservations.” And again: “I go further, and affirm that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed Constitution, but would be absolutely dangerous. They would contain various exceptions to powers not granted, and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do?”4 Could language be more clear or more complete in vindication of the principles laid down in this work? Hamilton declares, in effect, that the grants to the federal government in the Constitution are not surrenders, but delegations of power by the people of the states; that sovereignty remains intact where it was before; that the delegations of power were strictly limited to those expressly granted—in this, merely anticipating the tenth amendment, afterward adopted. Finally, in the concluding article of the Federalist, he bears emphatic testimony to the same principles, in the remark that “every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest. . . . Hence the necessity of molding and arranging all the particulars, which are to compose the whole, in such a manner as to satisfy all the parties to the compact. ”5 There is no intimation here, or anywhere else, of the existence of any such idea as that of the aggregated people of one great consolidated state. It is an incidental enunciation of the same truth soon afterward asserted by Madison in the Virginia convention—that the people who ordained and established the Constitution were “not the people as composing one great body, but the people as composing thirteen sovereignties.” Madison, in the Philadelphia convention, had at first held views of the sort of government which it was desirable to organize, similar to those of Hamilton, though more moderate in extent. He too, however, cordially conformed to the modifications in them made by his colleagues, and [139] was no less zealous and eminent in defending and expounding the Constitution as finally adopted. His interpretation of its fundamental principles is so fully shown in the extracts which have already been given from his contributions to the Federalist and speeches in the Virginia convention, that it would be superfluous to make any additional citation from them. The evidence of Hamilton and Madison—two of the most eminent of the authors of the Constitution, and the two preeminent contemporary expounders of its meaning—is the most valuable that could be offered for its interpretation. That of all the other statesmen of the period only tends to confirm the same conclusions. The illustrious Washington, who presided over the Philadelphia convention, in his correspondence repeatedly refers to the proposed union as a “Confederacy” of states, or a “confederated Government,” and to the several states as “acceding,” or signfying their “accession” to it, in ratifying the Constitution. He refers to the Constitution itself as “a compact or treaty,” and classifies it among compacts or treaties between “men, bodies of men, or countries.” Writing to Count Rochambeau on January 8, 1788, he says that the proposed Constitution “is to be submitted to conventions chosen by the people in the several States, and by them approved or rejected”—showing what he understood by “the people of the United States,” who were to ordain and establish it. These same people—that is, “the people of the several States”—he says in a letter to Lafayette, April 28, 1788, “retain everything they do not, by express terms, give up.” In a letter written to Benjamin Lincoln October 26, 1788, he refers to the expectation that North Carolina will accede to the Union, and adds, “Whoever shall be found to enjoy the confidence of the States so far as to be elected Vice-President,” etc.—showing that in the “confederated Government,” as he termed it, the states were still to act independently, even in the selection of officers of the general government. He wrote to General Knox, June 17, 1788, “I can not but hope that the States which may be disposed to make a secession will think often and seriously on the consequences.” June 28, 1788, he wrote to General Pinckney that New Hampshire “had acceded to the new Confederacy,” and, in reference to North Carolina, “I should be astonished if that State should withdraw from the Union.” I shall add but two other citations. They are from speeches of John Marshall, afterward the most distinguished Chief Justice of the United States—who has certainly never been regarded as holding high views of state rights—in the Virginia convention of 1788. In the first case, he was speaking of the power of the states over the militia, and is thus reported: [140]
The State governments did not derive their powers from the General Government; but each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this? . . . Could any man say that this power was not retained by the States, as they had not given it away? For (says he) does not a power remain till it is given away? The State Legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away .... He concluded by observing that the power of governing the militia was not vested in the States by implication, because, being possessed of it antecedently to the adoption of the Government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been, and it could not be said that the States derived any powers from that system, but retained them, though not acknowledged in any part of it.6In the other case, the special subject was the power of the federal judiciary. Marshall said, with regard to this: “I hope that no gentleman will think that a State can be called at the bar of the Federal court. Is there no such case at present? Are there not many cases, in which the Legislature of Virginia is a party, and yet the State is not sued? Is it rational to suppose that the sovereign power shall be dragged before a court?”7 Authorities to the same effect might be multiplied indefinitely by quotation from nearly all the most eminent statesmen and patriots of that brilliant period. My limits, however, permit me only to refer those in quest of more exhaustive information to the original records, or to the Republic of Republics, in which will be found a most valuable collection and condensation of the teaching of the fathers on the subject. There was no dissent, at that period, from the interpretation of the Constitution which I have set forth, as given by its authors, except in the objections made by its adversaries. Those objections were refuted and silenced, until revived long afterward, and presented as the true interpretation, by the school of which Judge Story was the most effective founder. At an earlier period—but when he had already served for several years in Congress, and had attained the full maturity of his powers— Webster held the views which were presented in a memorial to Congress of citizens of Boston, December 15, 1819, relative to the admission of Missouri, drawn up and signed by a committee of which he was chairman, and which also included among its members Josiah Quincy. He speaks of the states as enjoying “the exclusive possession of sovereignty” over their own territory, calls the United States “the American Confederacy,” and says, “The only parties to the Constitution, [141] contemplated by it originally, were the thirteen confederated States. ”And again: “As between the original States, the representation rests on compact and plighted faith; and your memorialists have no wish that that compact should be disturbed, or that plighted faith in the slightest degree violated.” It is satisfactory to know that in the closing year of his life, when looking retrospectively, with judgment undisturbed by any extraneous influence, he uttered views of the government which must stand the test of severest scrutiny and defy the storms of agitation, for they are founded on the rock of truth. In letters written and addresses delivered during the administration of Fillmore, he repeatedly applies to the Constitution the term “compact,” which, in 1833, he had so vehemently repudiated. In his speech at Capon Springs, Virginia, in 1851, he says:
If the South were to violate any part of the Constitution intentionally and systematically, and persist in so doing year after year, and no remedy could be had, would the North be any longer bound by the rest of it? And if the North were, deliberately, habitually, and of fixed purpose, to disregard one part of it, would the South be bound any longer to observe its other obligations? . . . How absurd it is to suppose that, when different parties enter into a compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest! . . . I have not hesitated to say, and I repeat, that, if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain can not be broken on one side, and still bind the other side.8The principles which have been set forth in the foregoing chapters, although they had come to be considered as peculiarly Southern, were not sectional in their origin. In the beginning and earlier years of our history they were cherished as faithfully and guarded as jealously in Massachusetts and New Hampshire as in Virginia or South Carolina. It was in these principles that I was nurtured. I have frankly proclaimed them during my whole life, always contending in the Senate of the United States against what I believed to be the mistaken construction of the Constitution taught by Webster and his adherents. While I honored the genius of that great man, and held friendly personal relations with him, I considered his doctrines on these points—or rather the doctrines advocated by him during the most conspicuous and influential portions of his public career—to be mischievous, and the more dangerous to the welfare of the country and the liberties of mankind on account of the signal ability and magnificent eloquence with which they were argued. [142] chapter XI: The Right of Secession—The Law of Unlimited Partnerships—The Perpetual Union of the Articles of Confederation and the “More perfect Union” of the Constitution—The Important Powers Conferred Upon the Federal Government and the Fundamental Principles of the Compact the Same in Both Systems—The Right to Resume Grants, When Failing to Fulfill their Purposes, Expressly and Distinctly Asserted in the Adoption of the Constitution. the right of secession—that subject which, beyond all others, ignorance, prejudice, and political rancor have combined to cloud with misstatements and misapprehensions—is a question easily to be determined in the light of what has already been established with regard to the history and principles of the Constitution. It is not something standing apart by itself—a factious creation, outside of and antagnostic to the Constitution—as might be imagined by one deriving his ideas from the political literature most current of late years. So far from being against the Constitution or incompatible with it, we contend that, if the right to secede is not prohibited to the states, and no power to prevent it expressly delegated to the United States, it remains as reserved to the states or the people, from whom all the powers of the general government were derived. The compact between the states which formed the Union was in the nature of a partnership between individuals without limitation of time, and the recognized law of such partnerships is thus stated by an eminent lawyer of Massachusetts in a work intended for popular use:
If the articles between the partners do not contain an agreement that the partnership shall continue for a specified time, it may be dissolved at the pleasure of either partner. But no partner can exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he thus causes. If there be a provision that the partnership shall continue a certain time, this is binding.9We have seen that a number of “sovereign, free, and independent” states, during the war of the Revolution, entered into a partnership with one another, which was not only unlimited in duration, but expressly declared to be a “perpetual union.” Yet, when that Union failed to accomplish the purposes for which it was formed, the parties withdrew, separately and independently, one after another, without any question [143] made of their right to do so, and formed a new association. One of the declared objects of this new partnership was to form “a more perfect union.” This certainly did not mean more perfect in respect of duration; the former union had been declared perpetual, and perpetuity admits of no addition. It did not mean that it was to be more indissoluble; the delegates of the states, in ratifying the former compact of union, had expressed themselves in terms that could scarcely be made more stringent They then said:
And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions which, by the said confederation, are submitted to them; and that the articles thereof shall be involvedly observed by the States we respectively represent; and that the Union shall be perpetual.10The formation of a “more perfect union” was accomplished by the organization of a government more complete in its various branches, legislative, executive, and judicial, and by the delegation to this government of certain additional powers of functions which had previously been exercised by the governments of the respective states—especially in providing the means of operating directly upon individuals for the enforcement of its legitimately delegated authority. There was no abandonment nor modification of the essential principle of a compact between sovereigns, which applied to the one case as fully as to the other. There was not the slightest intimation of so radical a revolution as the surrender of the sovereignty of the contracting parties would have been. The additional powers conferred upon the federal government by the Constitution were merely transfers of some of those possessed by the state governments—not subtractions from the reserved and inalienable sovereignty of the political communities which conferred them. It was merely the institution of a new agent who, however enlarged his powers might be, would still remain subordinate and responsible to the source from which they were derived—that of the sovereign people of each state. It was an amended Union, not a consolidation. It is a remarkable fact that the very powers of the federal government and prohibitions to the states, which are most relied upon by the advocates of centralism as incompatible with state sovereignty, were in force under the old confederation when the sovereignty of the states was expressly recognized. The general government had then, as now, the exclusive right and power of determining on peace and war, making treaties and alliances, maintaining an army and navy, granting letters of [144] marque and reprisal, regulating coinage, establishing and controlling the postal service—indeed, nearly all the so-called “characteristic powers of sovereignty” exercised by the federal government under the existing Constitution, except the regulation of commerce, and of levying and collecting its revenues directly, instead of through the interposition of the state authorities. The exercise of these first-named powers was prohibited to the states under the old compact, “without the consent of the United States in Congress assembled,” but no one has claimed that the confederation had thereby acquired sovereignty. Entirely in accord with these truths are the arguments of Madison in the Federalist, to show that the great principles of the Constitution are substantially the same as those of the Articles of Confederation. He says:
I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed. ... Do these principles, in fine, require that the powers of the General Government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that, in the new Government as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction. The truth is that the great principles of the Constitution proposed by the Convention may be considered less as absolutely new, than as the expansion of principles which are found in the Articles of Confederation.11In the papers immediately following, he establishes this position in detail by an analysis of the principle powers delegated to the federal government, showing that the spirit of the original instructions to the convention had been followed in revising “the Federal Constitution” and rendering it “adequate to the exigencies of government and the preservation of the Union.”12 The present Union owes its very existence to the dissolution, by separate secession of its members, of the former Union, which, as we have thus seen, as to its organic principles, rested upon precisely the same foundation. The right to withdraw from the association results, in either case, from the same principles—principles which, I think, have been established on an impregnable basis of history, reason, law, and precedent. It is not contended that this right should be resorted to for insufficient cause, or, as the writer already quoted on the law of partnership says, [145] “wantonly and injuriously to the other partners,” without responsibility of the seceding party for any damage thus done. No association can be dissolved without a likelihood of the occurrence of incidental questions concerning common property and mutual obligations—questions sometimes of a complex and intricate sort. If a wrong be perpetrated, in such case, it is a matter for determination by the means usually employed among independent and sovereign powers—negotiating, arbitration, or, in the failure of these, by war, with which unfortunately, Christianity and civilization have not yet been able entirely to dispense. But the suggestion of possible evils does not at all affect the question of right. There is no great principle in the affairs either of individuals or of nations that is not liable to such difficulties in its practical application. But, we are told, there is no mention made of secession in the Constitution. Everett says: “The States are not named in it; the word sovereignty does not occur in it; the right of secession is as much ignored in it as the procession of the equinoxes.” We have seen how very untenable is the assertion that the states are not named in it, and how much pertinency or significance in the omission of the word “sovereignty.” The pertinent question that occurs is, Why was so obvious an attribute of sovereignty not expressly renounced if it was intended to surrender it? It certainly existed; it was not surrendered; therefore it still exists. This would be a more natural and rational conclusion than that it has ceased to exist because it is not mentioned. The simple truth is that it would have been a very extraordinary thing to incorporate into the Constitution any express provision for the secession of the states and dissolution of the Union. Its founders undoubtedly desired and hoped that it would be perpetual; against the proposition for power to coerce a state, the argument was that it would be a means, not of preserving, but of destroying the Union. It was not for them to make arrangements for its termination—a calamity which there was no occasion to provide for in advance. Sufficient for their day was the evil thereof. It is not usual, either in partnerships between men or in treaties between governments, to make provision for a dissolution of the partnership or a termination of the treaty, unless there be some special reason for a limitation of time. Indeed, in treaties, the usual formula includes a declaration of their perpetuity; but in either case the power of the contracting parties, or of any of them, to dissolve the compact, on terms not damaging to the rights of the other parties, is not the less clearly understood. It was not necessary in the Constitution to [146] affirm the right of secession, because it was an attribute of sovereignty, and the states had reserved all which they had not delegated. The right of the people of the several states to resume the powers delegated by them to the common agency was not left without positive and ample assertion, even at a period when it had never been denied. The ratification of the Constitution by Virginia has already been quoted, in which the people of that state, through their convention, did expressly “declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will.”13 New York and Rhode Island were no less explicit, both declaring that “the powers of government may be reassumed by the people whenever it shall become necessary to their happiness.”14 These expressions are not mere obiter dicta, thrown out incidentally, and entitled only to be regarded as an expression of opinion by their authors. Even if only such, they would carry great weight as the deliberately expressed judgment of enlightened contemporaries, but they are more: they are parts of the very acts or ordinances by which these states ratified the Constitution and acceded to the Union, and cannot be detached from them. If they are invalid, the ratification itself was invalid, for they are inseparable. By inserting these declarations in their ordinances, Virginia, New York, and Rhode Island formally, officially, and permanently declared their interpretation of the Constitution as recognizing the right of secession by the resumption of their grants. By accepting the ratifications with this declaration incorporated, the other states as formally accepted the principle which it asserted. I am well aware that it has been attempted to construe these declarations concerning the right of the people to reassume their delegations of power—especially in the terms employed by Virginia, “people of the United States”—as having reference to the idea of one people, in mass, or “in the aggregate.” But it can scarcely be possible that any candid and intelligent reader who has carefully considered the evidence already brought to bear on the subject, can need further argument to disabuse his mind of that political fiction. The “people of the United States,” from whom the powers of the federal government were “derived,” could have been no other than the people who ordained and ratified the [147] Constitution; this, it has been shown beyond the power of denial, was done by the people of each state, severally and independently. No other people were known to the authors of the declarations above quoted. Madison was a leading member of the Virginia convention, which made that declaration, as well as of the general convention that drew up the Constitution. We have seen what his idea of “the people of the United States” was—“not the people as composing one great body, but the people as composing thirteen sovereignties.”15 Lee of Westmoreland (“Light-horse Harry”) in the same convention, answering Henry's objection to the expression, “We, the people,” said: “It [the Constitution] is now submitted to the people of Virginia. If we do not adopt it, it will be always null and void as to us. Suppose it was found proper for our adoption, and becoming the government of the people of Virginia, by what style should it be done? Ought we not to make use of the name of the people? No other style would be proper.”16 It would certainly be superfluous, after all that has been presented heretofore, to add any further evidence of the meaning that was attached to these expressions by their authors. “The people of the United States” were in their minds the people of Virginia, the people of Massachusetts, and the people of every other state that should agree to unite. They could have meant only that the people of their respective states who had delegated certain powers to the federal government, in ratifying the Constitution and acceding to the Union, reserved to themselves the right, in event of the failure of their purposes, to “resume” (or “reassume”) those powers by seceding from the same Union. Finally, the absurdity of the construction attempted to be put upon these expressions will be evident from a very brief analysis. If the assertion of the right of reassumption of their powers was meant for the protection of the whole people—the people in mass—the people “in the aggregate”—of a consolidated republic—against whom or what was it to protect them? By whom were the powers granted to be perverted to the injury or oppression of the whole people? By themselves or by some of the states, all of whom, according to this hypothesis, had been consolidated into one? As no danger could have been apprehended from either of these, it must have been against the government of the United States that the provision was made; that is to say, the whole people of a republic make this declaration against a government established by themselves and entirely subject to their own control, under a constitution [148] which contains provisions for its own amendment by this very same “whole people,” whenever they may think proper! Is it not a libel upon the statesmen of that generation to attribute to their grave and solemn declarations a meaning so vapid and absurd? To those who argue that the grants of the Constitution are fatal to the reservation of sovereignty by the states, the Constitution furnishes a conclusive answer in the amendment which was coeval with the adoption of the instrument, and which declares that all powers not delegated to the government of the Union were reserved to the states or to the people. As sovereignty was not delegated by the states, it was necessarily reserved. It would be superfluous to answer arguments against implied powers of the states; none are claimed by implication, because all not delegated by the states remained with them, and it was only in an abundance of caution that they expressed the right to resume such parts of their unlimited power as was delegated for the purpose enumerated. As these be those who see danger to the perpetuity of the Union in the possession of such power by the states, and insist that our fathers did not intend to bind the states together by a compact no better than “a rope of sand,” it may be well to examine their position. From what have dangers to the Union arisen? Have they sprung from too great restriction on the exercise of the granted powers, or from the assumption by the general government of power claimed by implication? The whole record of our Union answers, from the latter only. Was this tendency to usurpation caused by the presumption of paramount authority in the general government, or by the assertion of the right of a state to resume the powers it had delegated? Reasonably and honestly it cannot be assigned to the latter. Let it be supposed that the “whole people” had recognized the right of a state of the Union, peaceably and independently, to resume the powers which, peaceably and independently, she had delegated to the federal government, would not this have been potent to restrain the general government from exercising its functions to the injury and oppression of such state? To deny that effect would be to suppose that a dominant majority would be willing to drive a state from the Union. Would the admission of the right of a state to resume the grants it had made, have led to the exercise of that right for light and trivial causes? Surely the evidence furnished by the nations, both ancient and modern, refutes the supposition. In the language of the Declaration of Independence, “All experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed,” Would [149] not real grievances be rendered more tolerable by the consciousness of power to remove them; and would not even imaginary wrongs be embittered by the manifestation of a purpose to make them perpetual? To ask these questions is to answer them. The wise and brave men who had, at much peril and great sacrifice, secured the independence of the states, were as little disposed to surrender the sovereignty of the states as they were anxious to organize a general government with adequate powers to remedy the defects of the confederation. The Union they formed was not to destroy the states, but to “secure the blessings of liberty to ourselves and our posterity.”
